Ahmer Bilal Soofi

Published Hilal Magazine, November, 2016

In this article I intend to simply introduce some important and relevant provisions of existing laws of Pakistan that are directly or indirectly of concern to any operation in which the armed forces or civil armed forces are called in aid of civil power.

These provisions should be in the knowledge of the concerned commanders so that they can better plan the strategy and take pre-action or post action measures.

CALLING ARMED FORCES FOR MILITARY OPERATIONS

Armed forces are called in aid of civil power to enforce the Constitution of Pakistan.

The armed forces are called under Article 245 of the Constitution. The Federal Government has to issue a specific notification to commission the forces. Without such a notification, the mobilization or deployment of troops will be without a proper legal cover. Normally the notification under Article 245 is issued by the Federal Government when there is a larger threat such a counter insurgency situation. For a lesser and smaller counter terrorism operation, the Government can request armed forces or civil armed forces to aid them under ATA.  Thus a provincial or federal government has the powers under ATA to call forces in aid of civil power.  The Karachi operation is being done by a notification under ATA. Lastly in yet lesser level of violence such as an unlawful assembly that is not being controlled by police, armed forces can be called in aid of civil power under Cr.P.C.

In summary it can be stated that a military commander before responding to the request for mobilizing his troops in aid of civil power, must ensure if the legal documentation, notification etc required under any of the above law is in place.

The Article 245 of the Constitution states as follows:

“Article 245

  • The Armed Forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.
  • The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court.
  • A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forced of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245.”

MILITARY OPERATIONS MEANT TO ENFORCE THE CONSTITUTION OF PAKISTAN

The purpose of military operations is to enforce the constitution of Pakistan as some elements are violating it and have disrupted public order and it is no longer possible for the civilian structure to control the situation or function in accordance with the Constitution.

The obedience to the Constitution is the duty of every person within Pakistan. In this regard the following Article states;

“Article 5:

  • Loyalty to the state is the basic duty of every citizen.
  • Obedience to the Constitution and law is the [inviolable]obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.”

Further under the Constitution private armies are prohibited.  Anyone who raises any organization that is like a military organization is declared illegal. In this regard the relevant article of the Constitution states;

“Article 256

No private organization capable of functioning as a military organization shall be formed, and any such organization shall be illegal.”

In order to implement the said article, Private Armies Prohibition Act has been enacted under which private armies can be notified and those joining them can be sentenced for up to 5 years.

A non-state actor who has withdrawn his loyalty from the state and has joined private army is not only violating the Constitution of Pakistan but also commits an offence of waging war against the state. Section 121 of the PPC formulates the offence as follows;

“Section 121:

Whoever wages war against Pakistan, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life shall also be liable to fine.“

It is in this context that the Pakistan Army Act declares such non-state actor as enemy. The relevant section states as follows;

“(8) “enemy” includes all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to his Act to act;”

HUMAN RIGHTS COMPLIANCE DURING CONDUCT OF MILITARY ACTION

It must also be known that Pakistan is a party to several Conventions on Human Rights including ICCPR and CAT. In this regard, the armed forces while carrying out any action have a duty to comply with the human rights standards and make preservation and holding of human rights as an integral part of the military strategy.

In this regard Action in Aid of Civil power 2011 promulgated although to the extent of FATA and PATA provide a legal obligation on the armed forces of Pakistan. The relevant regulations are reproduced below;

“4: Precautions before using force:

  • The Armed forces may undertake, where possible, the following minimum preventive measures and precautions during the actions in aid of civil power, namely: –
  1. warn the civilians to vacate the area;
  2. send out warning to the residents to withdraw support for the miscreants;
  3. residents may be directed to point out the miscreants in hiding to the Armed Forces personnel;
  4. take special measures in respect of the life and safety of the children, women and elderly person; and
  5. take feasible precautions in the choice of means and methods of attack with a view to avoiding and minimizing collateral loss of civilian life and object. 
  • The commander of the Armed Forces shall issue instructions to troops under their control that the Armed forces shall adhere to the principles of proportionality and necessity and shall ensure that the collateral damage to life and property shall be minimum.
  • Subject to the above, the armed forces are authorized to use force, arms and ammunitions, including but not limited to firearms, weapons and air power etc., to achieve the objective during any armed action and to take any action, measure, decision that is necessary in this regard.”

Regulations further state as follows:

“5. Misuse of force during actions in aid of civil power. –

  • If any abuse or misuse of the use of force during actions in aid of civil power is alleged or attributed to any member of the Armed Forces, the same shall be investigated within the hierarchy of the Armed Forces.
  • If the said act of use of force referred to sub-clause (1) is attributed to any civilian officer, the Governor shall conduct inquiry and take appropriate steps against such officer in accordance with applicable law.
  • In case any conduct attributed to Armed Forces or their individual officials is already criminalized under any existing treaty or convention, then it shall deemed to be an offence under this Regulation and the same shall be tried only by the Armed Forces pursuant to a procedure prescribed under this Regulation in such an event.”

AACPR is the only law that implements the United Nations Convention against Torture. In this regard the relevant provision states as follows:

“15. Prohibition on Torture. –

No person interned under this Regulation shall be subjected to any inhuman or degrading treatment or torture.”

INDEMNITY OF SOLDIERS AND LIMITS OF INDEMNITY

The military action or action in aid of civil power is in effect a license to use force but not a license to kill. The rules of engagement issued by the armed forces also provide that military should exercise maximum care while using force during the operation and necessary cautions be taken to avoid ancillary damage.  However, knowing that there can be some losses to persons and property during such operations or any actions during emergency, the Constitution permits making of law that grants indemnity to the soldiers. This is nothing new because all those state functionaries who have the authority to take life, have been provided immunity. For example the Judges Immunity Act protects the judges from prosecution against any arbitrary legal process or registration of FIR for any decision that results in capital punishment.

Similarly under section 130 Cr.P.C no FIR can be registered against military officer unless Federal Government concurs.  The idea of giving indemnity is to defend the defenders.  In this regard the following article of the Constitution is relevant;

“Article 237:

Nothing in the constitution shall prevent [Majlis-e-Shoora (Parliament)] from making any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan.”

However, it should be noted that now in law of internal conflict, indemnity does not prevent the liability for war crimes if they are done knowingly.

As mentioned above, whenever the armed forces are called in aid of civil power, it constitutes a license to use force. The use of fire arms weapons is considered integral function of using force. However,   fire arms should not be used arbitrarily. Efforts must be to make sure that the suspects are arrested through warning or other means. Use of fire arms should be a last resort and that too should follow the principle laid down in section 102 of the Pakistan Penal Code which states as follows;

“The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.”

The above are some of the important provisions of law that the field commanders should be aware of while participating in the military operations.